Collins v. Shannon

• Decision Date: 14 December 1886
• Citation: 67 Wis. 441,30 N.W. 730
• Parties: COLLINS v. SHANNON.
• Court: Wisconsin Supreme Court

67 Wis. 441

30 N.W. 730

COLLINS

v.SHANNON.

Supreme Court of Wisconsin.

December 14, 1886.

Appeal from circuit court, Portage county.

G. W. Cate, for appellant, Collins.

Raymond & Haseltine, for respondent, Shannon.

TAYLOR, J.

The substantial allegations of the complaint in this action are (1) That on the twelfth of January, 1884, the plaintiff was the keeper of a grocery store in the city of Stevens' Point. (2) That on that day the defendant, wrongfully designing and intending to harass and annoy the plaintiff in his feelings, and to injure him in his said business, made an affidavit before a justice of the peace of said county, in an action in which the defendant was plaintiff, and the plaintiff in this action and one W. H. Collins were defendants, for an attachment in such action, charging that the said defendants were indebted to him in a sum exceeding five dollars, and alleging that he has good reason to believe that the defendants were about fraudulently to convey and dispose of their property so as to hinder and delay their creditors. (3) That upon such affidavit he caused a writ of attachment to be issued in said action against the property of the defendants, and caused the sheriff, to whom such statement was delivered, to seize the goods and stock of this plaintiff to satisfy the sum of $35, and the costs of the action, by reason of which he was put to great expense for counsel fees and loss of time, and by which he was greatly injured and harassed in his feelings, etc., and his credit and reputation as a merchant were injured to a great extent, and by reason of all which the plaintiff was damaged to the amount of $1,000. (4) That, at the time of making said affidavit and the issuing of said attachment, the defendant well knew that no such firm as W. H. Collins & Co. was in existence; that said firm had no property in the county, or in any county, liable to attachment, and that said affidavit was made, and attachment issued, for the sole purpose of having it levied upon the property of the plaintiff, and with the design of doing the plaintiff an injury; that the attachment was not served upon W. H. Collins, and no judgment was rendered against him thereon, although he resided in said county and city, and had property liable to execution. (5) That the defendant well knew that the statements contained in said affidavit were false, and entirely without foundation; that defendant had no reason to believe that Collins & Co. or W. H. Collins or William Collins were about fraudulently to convey and dispose of their property and effects so as to hinder and delay their creditors; but said affidavits were made, and the whole proceedings had, as hereinbefore set forth, for the sole purpose of annoying and injuring the plaintiff, and of inducing and compelling plaintiff to pay defendant's demand, against right and justice. (6) That the plaintiff was not, at the time when such attachment was issued, indebted to the defendant in the sum of $35, or in any sum whatever; that he was not, at that time or any other time, a member of the firm of W. H. Collins & Co.; and, so far as plaintiff's knowledge extends, no such firm ever existed or did business in the city of Stevens' Point. (7) That all the allegations in said affidavit for an attachment were false, and he was not about to convey and dispose of his property as set forth therein; and demands judgment for the sum of $1,000, and costs. The defendant answered by denying all the material allegations of the complaint. On the trial the jury returned a verdict for the defendant.

It will be seen, by an examination of the complaint, that the plaintiff, as his grounds of action, alleges that the defendant, knowing that the plaintiff was not indebted to him in any sum whatever, and for the purpose of compelling him to pay him money not due to him, wrongfully commenced this action for the purpose of harassing him, etc.; and, secondly, that he sued out an attachment in such action knowing that no such reason for issuing an attachment existed. On the trial of the action the first ground of action failed entirely, as the evidence showed that the defendant recovered the amount he claimed against the plaintiff in said attachment action. The only possible ground for recovery on the part of the plaintiff remaining was that the attachment was sued out without any lawful right, or cause for suing out the same.

There were but two exceptions taken by the appellant upon the trial. The one was to the introduction of evidence on the part of the defendant, and the other to a part of the instructions given to the jury by the learned circuit judge.

The objection to the evidence, as shown by the record, is as follows: On the part of the defendant: “We offer in evidence the judgment roll and judgment of both justice and circuit courts in the case of John Shannon against William Collins. [Objected to as to the evidence taken in the justice's court.] Counsel for the defendant. I offer to disprove malice. [Objection overruled, and exception by plaintiff.]” An examination of the bill of exceptions, as settled by the court, does not disclose the fact that the evidence taken in the justice's court was given in evidence on the trial of this action; and, as the judge has certified that the bill of exceptions contains all the evidence given on the trial, the plaintiff could not have been prejudiced by a ruling of the court under which no evidence was offered, admitting...